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related by the breach anddissolution of either the relation itself, or at least the advantages accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this : that the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior j and therefore the inferior can suffer no loss or injury. The wife -cannot recover damages for beating her husband, for she hath no separate interest in any thing during her coverture. The child hath no property in his father or guardian; as they have in him, for the fake of giving him education and nurture. Yet the wife or the child, if the husoand or parent be slain, have a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction ; which is called an appeal, and which will be considered in stie next book. And so the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in his master; and, if he receives his part of the stipulated contract, he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.

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CHAPTER THE NINTH.

Of INJURIES To PERSONAL PROPERTY.

IN the preceding chapter we considered the wrongs or injuries that affected the rights of persons, either considered as individuals, or as related to each other ; and are at present to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

And here again we must follow our former division" of property into personal and real: personal, which consists in goods, money, and all other moveable chattels, and things thereunto incident; a property, which may attend a man's person wherever he goes, and from thence receives it's denomination: and real property, which consists of such things as are permanent, fixed, and immoveable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist.

a See book II. ch. 2.

First

First then we are to consider the injuries that may be offered to the rights of personal property; and, of these, first the rights of personal property in possession, and then those that are in action only1'.

I. The rights of personal property in pojsssion are liable tp two species of injuries: the amotion or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful.

1. And first of an unlawful taking. The right of property in all external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy ; it follows as a necessary consequence, that when I once have gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever either by fraud or force dispossesses me of them is guilty of a transgression against the law of society, which is a kind of secondary law of nature. For there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions: and, if an acquisition of goods by either force or fraud were allowed to be a sufficient title, all property would soon be confined to-the most strong, or the most cunning; and the weak and simpleminded part of mankind (which is by far the most numerous division) could never be secure of their possessions.

The wrongful taking of goods being thus most clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with damages for the loss sustained by such unjust invasion; which [ 146 T is effected by action of replevin: an institution, which the mitfOT' ascribes to Glznvil, chief justice to king Henry the second. This obtains only in one instance of an unlawful taking, that of a wrongful distress; and this and the action of detinue (of which I shall presently say more) are almost the only actions, in which the actual specific possession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as of a nature so transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor. And, since it is a maxim that "lex neminem cogit ad vanay feu impoffibilia" it therefore Contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving , him a satisfaction in damages. But in the cafe of a distress^

b Book If. ch, 15.

the goods are from the first taking in the custody of the law, and not merely in that of the distreinor; and therefore they may not only be identified, but also restored to their first possessor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a refioiis, for which the distreinor has a remedy in damages, either by writ of rescousi, in case they were going to the pound, or by writ de parco fraclo, or poundbreach *, in cafe they were actually impounded. He may also at his option bring an action on the case for this injury: and shall therein, if the distress were taken for rent, recover treble damagesf. The term, rescous, is likewise applied to the forcible delivery of a defendant, when arrested, from the officer who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action on the case, or of rescous «: or, if the sheriff makes a return of such r i A* n rescous to the court out of which the process issued, the rescuer will be punished by attachment \

c c. S. % 6. 'Star. 2 W. & M. Scss. I. c. 5.

* F. f*. B. Iok 8 6 Mod. 111.

» U'd. ico. 'Cro. Jac.419. Salk. 586.

An

Air action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause: being a redelivery os the pledge ', or thing taking in distress, to the owner; upon his giving security to try the right of the distress, and to restore it if the right be adjudged against himj: after which the distreinor may keep it, till tender made of sufficient amends : but must then re-deliver it to the owner*. And formerly, when the party distreined upon intended to dispute the right of the distress, he had no other process by the old common law than by a writ of replevin, rtplegiari faciasx s which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and afterwards to do justice in respect of the matter in dispute in his own county court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage". For which reason the statute of Marlbridge" directs, that (without suing a writ out of the chancery) the sheriff immediately, upon plaint to him made, shall proceed to replevy the goods. And, for the greater ease os the parties, it is farther provided by statute 1 P. & M. c. 12. that the sheriff {hall make at least four deputies in each county, for the sole purpose of making replevins. Upon application therefore, either to die sheriff or one of his said deputies, security is to be given, in pursuance os the statute of Westm, 2. 13 Edw. I. c. 2. I. That the party replevying will pursue his action against the distreinor, for which purpose he puts in plegios de prosequendo, or pledges to prosecute; and, 2. That if the right he determined against him, he will return the distress again; for which purpose he is also bound to find plegios de relorno habendo. Besides these pledges, the sufficiency of *■ ••

which is discretionary and at the peril of the sheriff, the statute 11 Geo. II. c. 19. requires that the officer, granting a replevin on a distress for rent, (hall take a bond with two

I S* pig. 13. IRN. B.68.

j Co. L'itt. 145. m a Inst. 139.

"SRrp. 147. » 5» Hen. III. «. 11.

M 3 sureties

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